The opinion of the court, on the original hearing, was delivered by
Morgan, J.,on the rehearing by
Marr, J.,and the application for a second rehearing by
Manning, C. J.Section fifty of the acts of 1799, approved second of March, (United States Statutes at Large- p. 655) provides that if any goods brought in any ship or vessel, from any foreign port, shall be unladen, between the setting and the rising- of the sun, except by special license from the collector óf the port, the goods shall become forfeited.
Section three of the act approved sixth of August, 1846, provides that if any warehoused goods shall be fraudulently concealed in or removed from any public or private warehouse, the same shall be forfeited to the United States.
Section four of the act of eighteenth of July, 1866,' provides that if any person shall fraudulently or knowingly import, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or «ale of such goods, knowing the same to have been imported contrary to law, such goods shall be forfeited.
On the twenty-fourth of May, 1869, the collector of the port of Louisville seized 1089 barrels and 254 packages of sugar as having been brought into the United States in contravention of the laws above quoted, and the United States attorney libeled the same, and asked for the condemnation of - the property.' In whose hands the sugars were, -seized does not appear.
Plaintiffs, who reside in Louisville, aver that the sugars in question were shipped to them by H. N. Soria & Co., of New Orleans, and that they were sold by them (plaintiffs.) That the sugars were for a long time in danger of being confiscated; that the persons to whom they had sold them, and in whose possession they were when seized, were innocent vendees, and that they (plaintiffs) were bound to “ stand by them ” and protect them from loss, which they did. They aver that after great exertions they succeeded in effecting a compromise with the government, to accomplish which they were obliged to pay, and did pay, in duties, costs, expenses, and charges, 111,041 41.
They then aver that H. N. Soria & Co. were merely the agents of James S. Clark, the defendant, who, they allege, was the real owner of the sugars, and that he merely used Soria & Co. to carry out his designs. They aver that if they had not compromised with the government the sugars would have been confiscated. They say that they deemed it in the best interest of all parties to make the compromise, and that, as negotiorum gestores, they did so. They pray for judgment against the defendant in the sum claimed, as above set forth.
• The action, therefore, is one instituted by a negotiorum gestor for the reimbursement of money spent by him in the interest of his principal. Primarily, whose interests were the plaintiffs protecting when they made *95the alleged compromise ? Evidently, the parties in whose hands the sugar was seized, for it was their property, and it was they who were in ■danger of loss.
Whose interest did they represent, in the second place ? Their own, because they allege that if the sugars had been condemned they would have been obliged to make good the loss to the holders thereof, their "vendees.
But they say that Clark committed the fraud; that Clark shipped the sugars to them; that they sold them to third parties; that without the compromise the sugars would have been condemned, in which event they, innocent venders, would have had to shoulder the burden of their Innnocent vendees, and that Clark who perpetrated the alleged fraud upon the government and procured them to pass off the property is bound to reimburse them what they paid to prevent the loss attaching to their vendees.
A negotiorum gestor is one who spontaneously and without authority undertakes to act for another during his absence in his affairs. Bouvier’s Law Dictionary, vol. 2, p 170. His agency springs from an emergency, and his action is taken on the spur of the moment. The action must be intended to benefit the person in whose favor the Action is taken, and must benefit him. In this event he is responsible for the expenses incurred by his self-constituted agent. Now the plaintiffs were not the agents of Clark when the compromise was effected. The compromise was not effected in his name. Their connection with Clark ceased when they disposed of the sugar shipped by Soria & Co. to them, assuming Clark to have been the owner thereof, and their returns thereof had been made and acknowledged. If they acted for him in regard to the compromise it was not because of any contract between them, or from any obligation under which they rested, but it was in what they supposed to be the interest of the defendant.
The plaintiffs reside, as we have seen, in Louisville. The defendant resides in New Orleans. Between the two cities there is rapid communication by rail, and almost instantaneous communication, by telegraph. When the sugars were seized by the government, communication between the two places was not interrupted. Some-ten months intervened between the date of the seizure of the sugars and the compromise, and although it appears that one of the plaintiffs was once in this city, and although they had sent counsel here from Louisville to examine into the facts upon which the libel was based, no demand whatever was made upon Clark, and no call was made upon him to defend the suits or procure the release of the property libeled.' The compromise, therefore, was •the voluntary act of the plaintiffs, and made without reference to Clark. 'They certainly had no power to spend his money in that way without his *96consent, when they could have notified him of the danger he was in, and at least called upon him to protect himself and them.
Judgment affirmed.
Taliaferro, J. Eor the reasons above stated, and others, I concur in the decree. Justices Howell and Wyly reserve the right to file dissenting opinions.